PI Brief Update

Legal Mind Case and Commentary No. 38: The Importance of being an independent expert - [Koch HCH, Jansen F, Grundy L and Robertson C, August 2022]

The recent case of Andrews and others v. Kronospan Ltd (2022) EWHC 479 involved the Senior Master prohibiting the claimant from relying upon their experts’ evidence (Deal N, 2022), due to his ‘inability to act in accordance with his obligation’.

In this excellent review by Deal (2022), the case was a group action relating to a nuisance claim (emission of dust, noise and odour) from a manufacturing plant. Expert reports and joint discussions were involved. At a later stage, it emerged that the claimant’s expert had been in communication with his instructing solicitors over several months with exchanges of written information pertaining to the joint statement and substantive changes in its content.

Reliance of the expert’s evidence was revoked due to the transgression of the CPR rules, in particular CPR 35.3, PD35 paragraphs 2.1 and 2.2.

Commentary

In his excellent article, Deal (2022) reached the following conclusions:

1. Despite constant dialogue between expert and instructing solicitors, there must be appropriate separation and lack of ‘outside influence’ from the instructing party.

2. The expert must not become, or risk becoming, an advocate for one side. He/she must be an independent expert whose primary obligation is to the Court.

3. One rider : before final signature there can be sight by the instructing solicitor of a draft pre-signature joint statement to ensure there is ‘no material misunderstanding of law or fact’. This should be done openly so that both parties can contribute.

It is incumbent on all experts to be aware of their duty to their Court and to comply with their obligations as an expert.

One of the most important training points for expert witnesses is the awareness of their role in joint expert discussions and the preparation and process of joint discussions and statements, plus a pre-requisite for understanding expert witness work, namely knowledge and understanding of the CPR rules. Each profession has its own basic and extended training and CPD in areas of professionalism and independence. Clinical psychologists, for example, are well placed to be independent experts, having been trained to be objective in both research and clinical practice, for instance, considering multiple data sources and possible range of opinion as well as following evidence-based practice. Applying this core training to the expert witness role can ensure experts remain objective.

The joint statement process is invaluable to the Court and contributes to achieving a high quality of evidence via two independent experts maintaining a ‘high bar’ of impartiality.

Authors

Prof. Hugh Koch, Dr Laura Grundy and Dr Chrissie Robertson are all members of HK Associates.

Dr Friso Jansen, Senior Lecturer in Law, Birmingham City University

Professor Koch is visiting professor in Law and Psychology at Birmingham City University.

References

Deal N (2022) Expert witness: The importance of being independent. Bond Solon. Cardiff. March.

Koch HCH, Jansen F, Willows J and Francis A (2022 in submission) Contemporary Issues in Psychological Injury and Law. JPIL. Autumn.

Koch HCH (2016) Legal Mind: Contemporary Issues in Psychological Injury and Law. Expert Witness Publications. Manchester.

Koch HCH (2018) From Therapist’s Chair to Courtroom: Understanding Tort law Psychology. Expert Witness Publications. Manchester

Koch HCH (2019) Legal Mind Case and Commentary: Publication Directory. LCB Publishing. Manchester.

Previous commentaries have covered

Koch HCH, Jansen F, Savage J, Aldridge M and Nokling K (2022) Legal Mind Case and Commentary No. 37 Legal Mind Cases on Dishonesty. PIBULJ. February.

Koch HCH, Jansen F, Grace J, Gill I and Huntley F (2021) Legal Mind Case and Commentary No. 36 Levels of unreliability in chronic pain. PIBULJ. October.

Koch HCH, Aldridge M, Grace J and Jansen F (2021) Legal Mind Case and Commentary No. 35 A reasonable expert, please? PIBULJ. July.

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